As he tends to remind us on a regular basis, Donald Trump won the presidential election back in November 2016. But that doesn’t mean that National Labor Relations Board (NLRB) policy turns on a dime. The Board has only three members at this time with Member Philip Miscimarra (R) in the role of Acting Chairman still outnumbered by Members Pearce (D) and McFerran (D). With confirmations of even cabinet level nominations still pending, it could be well into 2018 before a full complement of Board Members are in place and the Republicans take the majority.

Although the Board’s recent decision in Dish Network, LLCprobably would have yielded the same result with a full Trump Board, Acting Chairman Miscimarra’s concurring opinion likely signals a future relaxing of the Board’s standards for evaluating whether certain employer policies and employment agreements violate employee Section 7 rights under the National Labor Relations Act (NLRA). In Dish Network, the Board concluded that the employer’s mandatory arbitration policy and agreement violated Section 8(a)(1) of the NLRA. Following its jurisprudence from prior cases decided during the Obama Administration, the Board concluded that the arbitration agreement constituted an 8(a)(1) violation because it “specifies in broad terms that it applies to ‘any claim, controversy and/or dispute between them, arising out of and/or in any way related to Employee’s application for employment, employment and/or termination of employment, whenever and wherever brought.’” As a result, the Democratic Board Members concluded that employees would “reasonably construe” the agreement to prohibit the filing of Board charges and therefore to interfere with their Section 7 rights in violation of Section 8(a)(1). Separately, the Democratic Board Members also concluded that the agreement’s confidentiality provision, which prompted the employer to instruct an employee not to discuss his suspension from employment with co-workers, also violated Section 8(a)(1).

In his concurring opinion, Acting Chairman Miscimarra agreed with the ultimate Section 8(a)(1) violation findings, but noted his disagreement with using a test that asks whether employees might “reasonably construe” a policy as violating their Section 7 rights instead of determining whether the policy actually does violate those rights. Instead, as he has explained in numerous dissenting opinions to date, he believes an arbitration agreement “may lawfully provide for the arbitration of NLRA claims, and such an agreement does not unlawfully interfere with Board charge filing, at least where the agreement expressly preserves the right to file claims or charges with the Board or, more generally, with administrative agencies.” With respect to the confidentiality provision, Acting Chairman Miscimarra stated that “there may be circumstances where an arbitration agreement’s confidentiality provision may be lawful based on justifications unrelated to the NLRA, particularly when the matter being arbitrated does not implicate NLRA-protected activity.” Because the confidentiality provision in question in Dish Network implicitly required that any unfair labor practice claims would need to be kept confidential, he agreed with his colleagues that the Dish Network provision violated Section 8(a)(1).

Takeaways

Although the NLRB probably is the most politically influenced of the various federal employment-related agencies, it takes time for Board law to catch up to the change in presidential administrations. As a result, employers can anticipate perhaps as much as another year or more living under the philosophies of and standards set by the Obama Board and must maintain their policies accordingly. In time, however, employers can expect that a Republican Board majority will relax some of the standards that were established during the last eight years. At least, that is, until there is another change in administration…

Porter Wright Morris & Arthur LLP

Porter Wright Morris & Arthur LLP offers this blog for general informational purposes only. The content of this blog is not intended as legal advice for any purpose, and you should not consider it as such advice or as a legal opinion on any matters. The information provided herein is subject to change without notice, and you may not rely upon any such information with regard to a particular matter or set of facts. Further, the use of the blog does not create, and is not intended to create, any attorney-client relationship between you and Porter Wright Morris & Arthur LLP or any individual lawyer in the firm. No such relationship will be considered to have been formed until we have had an opportunity to resolve any conflict of interest issues and have advised you, in writing, of the nature and scope of the legal services to be provided. Unless we establish an attorney-client relationship with you with regard to the particular matter, we will not treat any information that you may send to us, or submit as a comment to a blog article or entry, as confidential or privileged, and any unsolicited communications may be disclosed to other persons without regard to confidentiality considerations. Use of the blog is at your own risk, and the site is provided without warranty of any kind. We make no warranties of any kind regarding the accuracy or completeness of any information on this blog, and we make no representations regarding whether such information is reliable, up-to-date, or applicable to any particular situation. Porter Wright Morris & Arthur LLP expressly disclaims all liability for actions taken or not taken based on any or all of the contents of this blog, or for any damages resulting from your viewing and use of this blog.